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Methodology For Determining A Uniform System Of International Criminal Law Defenses

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Chapter Summary

The enforcement of a uniform system of international justice, as well as the interrelationships between defenses stemming from customary international law sources and those emerging from comparative criminal law sources, should result in a uniform principle or rule as to the admissibility of defenses in international criminal law (ICL). This chapter focuses on the methodological arguments proposed to achieve and maintain such uniformity. The first substantive argument for a uniform system of IC defenses can be deduced from the raison d'être of legal defenses. A second argument hereto relates to the interrelation between domestic criminal law systems and ICL, more especially the element of mens rea. A third argument emerges in support of one uniform system of legal defenses in ICL. It is particularly important that the international community implements the principle that under ICL guilt must be personal, including criminal responsibility for violations of the law of armed conflict.

Keywords: armed conflict; criminal responsibility; domestic criminal law systems; international criminal law (ICL); legal defenses; mens rea



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